Indigenous Knowledge

Indigenous Knowledge has been used for centuries by indigenous and local communities and has been the mainstay of their existence especially in the key sectors of food and health. Western science has recently begun looking at Indigenous Knowledge as a source of new drugs especially since the cost of putting new drugs on the market is becoming very high. The growing phenomenon of biopiracy shows the somewhat hypocritical attitude of western science to Indigenous Knowledge (IK). Scavenging it on the one hand and claiming patents on all kinds of products derived from IK (turmeric, ayahuasca, neem, etc.) yet refusing to acknowledge its economic value and ownership.

Despite the growing recognition of IK as a valuable source of knowledge, western intellectual property laws continue to treat it as a component of “public domain”, freely available for use by anybody. Moreover, in some cases, diverse forms of IK have been appropriated under intellectual property rights by researchers and commercial enterprises, without any compensation to the knowledge’s creators or possessors.

Similarly, the use and continuous improvement of farmers' varieties (landraces) is essential in many agricultural systems. In many countries, seed supply fundamentally relies on the decentralized, local system of seed production which operates on the basis of the diffusion of the best seed available within a community and local farmers ensure that the farming community is supplied with planting material. The knowledge of farmers about crop varieties and their special characteristics has been central to the development of new plant varieties and for global food security.

The importance of IK has gained growing recognition in international fora. Thus, in 1981 a WIPO-UNESCO Model Law on Folklore was adopted; in 1992 the Convention on Biological Diversity specifically addressed the issue (article 8(j)). In 2000, an Intergovernmental Committee on Intellectual Property and Genetic Resources, Indigenous Knowledge and Folklore was established under the auspices of WIPO (World Intellectual Property Organization).


Misappropriation of IK

A large number of patents has been granted on genetic resources and knowledge obtained from developing countries, without the consent of the possessors of the resources and knowledge. There has been extensive documentation of Intellectual Property Rights (IPR) being sought over resources “as they are”, without further improvement (e.g., US patent No. 5,304,718 on quinoa granted to researchers of the Colorado State University; US Plant patent No. 5,751 on ayahuasca, a sacred and medicinal plant of the Amazon) and on products based on plant materials and knowledge developed and used by local/indigenous communities, such as the cases of the neem tree, kava, barbasco, endod and turmeric, among others.

Many of these patents have been revoked by the competent national authorities. Thus, the Council of Scientific and Industrial Research (CSIR) from India asked for a re-examination of the US patent No. 5,401,5041 granted for the wound healing properties of turmeric. The US Patent and Trademark Office (USPTO) revoked this patent after ascertaining that there was no novelty; the innovation having been used in India for centuries. In early 2000 the patent granted to W.R. Grace Company and US Department of Agriculture on neem (EPO patent No. 436257) was also revoked by the European Patent Office on the grounds of its use having been known in India. The most important use of the neem tree is that of biopesticide. In this respect, neem has more than 60 valuable compounds, which also includes the widely used azadirachtin A (aza A). According to Grace, azadirachtin was being destroyed during traditional processing. This is highly inaccurate. The extracts were indeed subject to degradation but this did not amount to any wastage since farmers put such extracts to use as and when required. The problem of stabilisation arose only when it needed to be commercially packaged for a long time. The 1992 patent application was put forward by Grace on the principle that the process supposedly invented by them paved the way for additional extraction in the form of water soluble neem extract and hence is an add-on rather than a substitute to the current neem industry in India. In short, the processes are supposedly novel and an advance on the Indian techniques. However, this novelty exists mainly due to ignorance of the West. A re-examination request for the patent on Basmati rice lines and grains (US Patent No. 5,663,484) granted by the USPTO was also made by the CSIR and Rice Tec the patent applicant choose to withdraw 15 out of its 20 claims.

International conventions and treaties dealing with IK are characterized by the fact that they are not binding. Every clause that deals with benefit sharing is contested and rejected. International Labour Organization (ILO) Convention No. 169 which says a lot about legal standards for indigenous rights fails to protect the IPR of indigenous people. Whereas the UN Declaration on the rights of IP recognizes the rights and aspirations of the IP, it will be a non- binding document, which can not be legally enforced. In the International Treaty on Plant Genetic Resources, developed nations have successfully blocked an international recognition of Farmers Rights. They also contest any notion of paying for the use of traditional germplasm in a benefit sharing arrangement. The CBD, which has attempted to push through the interests of IP, has been thwarted by the American refusal to ratify it and accept its conditions. Protecting IK in the interest of communities will require action at both the national level, in the form of protective laws and an international agreement condemning biopiracy and recognizing that granting patents on the property of local communities is unethical.